Senate to vote on giving President authority to indefinitely imprison American citizens, and others, without charge or trial

At the risk of being called fear monger, it looks as though our Senator, Carl Levin, has drafted language within the National Defense Authorization Act for Fiscal Year 2012… which is likely to be voted on tomorrow… that would give Obama, and the presidents to follow him, the power to, among other things, deploy our military within the United States to apprehend American citizens who could then be imprisoned indefinitely without charge or trial. The following comes from the ACLU:

While nearly all Americans head to family and friends to celebrate Thanksgiving, the Senate is gearing up for a vote on Monday or Tuesday that goes to the very heart of who we are as Americans. The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself.

Senators need to hear from you, on whether you think your front yard is part of a “battlefield” and if any president can send the military anywhere in the world to imprison civilians without charge or trial.

The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. Even Rep. Ron Paul (R-Texas) raised his concerns about the NDAA detention provisions during last night’s Republican debate. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.

The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.

I know it sounds incredible. New powers to use the military worldwide, even within the United States? Hasn’t anyone told the Senate that Osama bin Laden is dead, that the president is pulling all of the combat troops out of Iraq and trying to figure out how to get combat troops out of Afghanistan too? And American citizens and people picked up on American or Canadian or British streets being sent to military prisons indefinitely without even being charged with a crime. Really? Does anyone think this is a good idea? And why now?

The answer on why now is nothing more than election season politics. The White House, the Secretary of Defense, and the Attorney General have all said that the indefinite detention provisions in the National Defense Authorization Act are harmful and counterproductive. The White House has even threatened a veto. But Senate politics has propelled this bad legislation to the Senate floor.

But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.

In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

In response to proponents of the indefinite detention legislation who contend that the bill “applies to American citizens and designates the world as the battlefield,” and that the “heart of the issue is whether or not the United States is part of the battlefield,” Sen. Udall disagrees, and says that we can win this fight without worldwide war and worldwide indefinite detention.

The senators pushing the indefinite detention proposal have made their goals very clear that they want an okay for a worldwide military battlefield, that even extends to your hometown. That is an extreme position that will forever change our country.

Now is the time to stop this bad idea. Please urge your senators to vote YES on the Udall Amendment to the National Defense Authorization Act.

If this is true… and I have no reason to think that it isn’t… why is Levin joining with the Republicans to do this? Why, when the administration says that it intends to veto this legislation, and that it would be counterproductive to our national interests, is he pushing it? Why does he think it might be necessary to deploy the military within the United States? And why does he agree that people should be held indefinitely without charge? If you have a moment on Monday, give him a call and ask. Here’s his phone number in Washington.

(202) 224-6221

And, as long as you’re calling him, you might as well call Debbie Stabenow too, and ask if she intends to vote along with Levin. Here’s her number.

(202) 224-4822

For those of you not in Michigan, you’ll find contact information for your Senators here.

“(d) CONSTITUTIONAL LIMITATION ON APPLICABILITY TO UNITED STATES PERSONS.—The authority to
detain a person under this section does not extend to the
detention of citizens or lawful resident aliens of the United
States on the basis of conduct taking place within the
United States except to the extent permitted by the Constitution of the United States.”

Arbitrary detention and denial of due process to anyone is a bad thing to me. I fail to see, however, how sections 1031 and 1032 of this years Defense Appropriations Bill diverge in any way from current policies on the detention of military combatants and suspected terrorists.

In a recent op-ed in the Chicago Times, a bipartisan group of three former federal judges, including William S. Sessions, who is also the appointed director of the FBI under President Reagan, said it best when describing these provisions – quote – “legislation now making its way through Congress would seek to over-militarize America’s counterterrorism efforts, effectively making the U.S. Army the judge, juror to the exclusion of FBI and local and state law enforcement agencies. As former federal judges, we find this prospect deeply disturbing. Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense.” End of quote. And, Mr. President, I would ask unanimous consent that that op-ed be entered into the record.

Mr. President, I would also point out that these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect. One section of these provisions, section 1031, would be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the U.S. military to perform law enforcement functions on American soil. That alone should alarm my colleagues on both sides of the aisle, but there are other problems with these provisions that must be resolved.

“The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.”

The Defense Appropriations Bill is hardly a secret. In fact, a pdf has been up on Carl Levin’s site since June! As for whether it’s passed, it hasn’t gone up for a vote yet!

If this blogger from the ACLU wants to get serious about issues of combat detainees, then he should. It’s a post worth taking up. In his post, however, he has chosen to distort the true information contained in the bill and feed the paranoia of liberals who lack the skills to read bills for themselves.

The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world.. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.

The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret and passed in a closed-door committee meeting, without even a single hearing. The White House has threatened a veto, but we can’t let it get that far.

There is a way to stop this dangerous legislation. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

In response to proponents of the indefinite detention legislation who contend that the bill “applies to American citizens and designates the world as the battlefield,” and that the “heart of the issue is whether or not the United States is part of the battlefield,” Sen. Udall disagrees, and says that we can win this fight without worldwide war and worldwide indefinite detention.

The senators pushing the indefinite detention proposal have made their goals very clear that they want an okay for a worldwide military battlefield, that even extends to your hometown. That is an extreme position that will forever change our country.

Now is the time to stop this bad idea. Please urge your senators to vote YES on the Udall Amendment to the National Defense Authorization Act.

2. The bill sponsors, as well as Senators Graham and Ayotte for pushing this fascist piece of trash. Even if we don’t change their minds, they have to know that there will be blowback for something this extreme, and that it will essentially slow business in their offices to a crawl.

Senator John McCain
(202) 224-2235

Senator Carl Levin
(202) 224-6221

Senator Lindsey Graham, who explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” AND STILL SUPPORTS IT!
(202) 224-5972

Senator Kelly Ayotte, who declared that the bill is needed because “America is part of the battlefield.” She apparently is looking for another Kent State.
(202) 224-3324

Bonus points for leaving messages on their webpages, FB pages, and in their district offices, which can be found by Googling them. I’m just trying to make this shorter and readable! This event is EST, to coincide with office hours in DC.

Nonsense. The bill specifically exempts US Citizens and Permanent Residents.

That being said, no bill to this point has gone far enough to protect the right of due process to all detainees. The way this is being presented, however, is vastly misleading and sadly bucks the more important issue of answering questions of how to protect due process for all detainees.

Thank you, Mr Anonymous for that very relevant piece that helps to clarify the issue for me.

At stake is the inclusion or exclusion of the very text that I pasted above, and repeatedly referred to.

I did not realize that there was a move to remove this text. The removal of this text, while likely presenting little threat to OWS protesters, would certainly be an affront to due process as guaranteed in the Constitution.

Just called Levins office and they were telling me that the indefinate detention without trial would only apply to “bad people like Al-Qaeda”. Gee, if a US citizen likes to say they support that group, are they off to jail with no charges or trial date? What if next the ACLU becomes an official “bad people group”?

Who determines who the “bad people” are? I can’t believe that Levin’s office can’t understand the problems with that.

I included the text of the sections (1031 and 1032) at issue on my blog, where I publicly chastigate myself for being wrong. The text I’ve included is before Levin and McCain came up with the brilliant idea of axing the exemptions for US citizens and permanent residents.

It’s worth noting that the Obama admin has threatened a veto is the exemption isn’t included.

I called Levin’s office twice today. The first time I was rudely told to read the bill (which I had) and that there was nothing to be concerned about. So I looked at it a little more closely and realized that the June draft to which Pete linked had an exemption for US citizens and legal residents in sec 1031 (authorizing indefinite detention without trial) but the actual bill before congress only has such an exemption in sec 1032 (mandating military authority over such persons). So as far as I can tell, sec 1031 codifies current practices in the “War on Terror.” I called Levin’s office again asking for some clarification on this section and was told that it was only for people who were “proved” to be Al Qaeda and that it had nothing to do with protests like Occupy Wall Street. She was rather hostile.

In the 10 years since we declared war on terrorism, our country has grappled with how to detain and prosecute accused enemy combatants in a war that will have no clear end. Two of my colleagues on the Senate Armed Services Committee, Chairman Carl Levin (D-Mich.) and ranking Republican John McCain (Ariz.), argued on this page Monday for controversial provisions they authored in the National Defense Authorization Act aimed at addressing those questions.

I have no doubt that my colleagues had the best of intentions when they wrote those provisions, but their proposal is deeply flawed. If the Senate passes this legislation in a vote expected this week, we risk harming our ability to combat terrorism and weakening our national security.

While Sens. Levin and McCain argue that the provisions merely codify existing authority to detain accused terrorists, the secretary of defense, the directors of national intelligence and the FBI, and the White House — along with numerous defense experts — have said this would amount to a significant expansion of the military’s detention authority.

For example, the provisions would require the military to dedicate a significant number of personnel to capturing and holding terrorism suspects — in some cases indefinitely — even those apprehended on U.S. soil. And they authorize the military to do so regardless of an accused terrorist’s citizenship, even if he or she is an American captured in a U.S. city.

Our law enforcement, military and intelligence workers have spent more than a decade carefully and collaboratively determining how to work together in the war against terrorism. But these proposed changes would require the military to take on a new responsibility as police, jailors and judges — jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.

Additionally, the requirement that the military — not civilian law enforcement — take suspected terrorists into custody threatens to undo much of the progress the FBI and state and local law enforcement have made to stop terrorists plotting in the United States and overseas. That could make it difficult or impossible to collaboratively gather intelligence on domestic terror cells at all.

The guilty plea last month by would-be Detroit plane bomber Umar Farouk Abdulmutallab is just one example of law enforcement’s critical role in our national security. The last thing we should be doing is preventing local, state and federal authorities from investigating and acting on threats to our safety.

The White House is so concerned about the changes that it has threatened to veto the defense authorization legislation if they are included. In light of that, I have offered an amendment aimed at averting a veto. My amendment would strike the detention provisions from the bill and require the Departments of Defense, Homeland Security, Justice and State as well as the director of national intelligence to issue a joint report detailing the gaps in our detention policy. This report would be due within 90 days and would allow Congress to draft detention legislation that meets our national security needs and keeps faith with the guiding principles of our Constitution.

We owe it to our service members and the citizens they protect to pass the defense authorization bill quickly. But without the expertise of our military professionals, we simply don’t know how destabilizing these detention provisions could be to national security policy.

Unlike Senator Stabenow, who has, over the years, voted for several awful pieces of legislation that were quite damaging to our civil liberties — I had, until now, counted on Senator Levin to be a “voice of reason” in terms of protecting basic Constitutional rights and values.

Levin’s support for this legislation (which sounds it could have been written by Dick Cheney) is simply inexcusable, not to mention inexplicable.

From a discussion on Reddit about a Washington’s Blog post about whether this applies to U.S. citizens.

The bill says that the military MUST indefinitely detain anyone SUSPECTED of helping terrorists or associated forces.

1031(e) says that the MANDATORY indefinite detention doesn’t apply to U.S. citizens … but the government CAN indefinitely detain any U.S. citizen it feels like without trial, without presenting evidence, without letting the citizen consult with a lawyer … destroying the Constitutional rights to trial, to face our accuser, etc. And destroying rights which go back to England in 1215.

In other words, it’s like saying “you don’t HAVE to lock up Joey for the rest of his life because he called you a mean name, but you CAN lock him away and throw away the key and then falsely accuse him of being a suspected terrorist if it would make you happy”.

In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.

The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”

Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as ”black hole” injustice.

The United States House of Representatives and the Senate both passed the National Defense Authorization Act (NDAA). This Act lays out the budget and expenditures of the US Department of Defense, but also has provisions for its authority. Since it defines the DoD budget, a version of it passes every year, but this year, the NDAA includes provisions that codify the ability of the President to basically snatch people off the streets inside our own country, and hold them indefinitely in detention without trial or hearing, and torture them. While some are saying that this ability already exists for the President, it is being codified into law by this Act.

Lest you think I am being reactionary, there is a vast outcry against these provisions, which includes the voices of the Defense Secretary, the Director of National Intelligence, the Directors of the FBI and CIA (!!), and the White House Advisor for Counterterrorism — all of whom spoke out that these indefinite detention provisions are bad for the country. The ACLU, which is all about defending civil rights, is strongly opposed to this. Even President Obama had threatened to veto the Act if these provisions were left in.

Yet despite this, Congress passed these terrible, terrible provisions, and now President Obama has rescinded his veto threat; most people seem to think he will sign this into law.

Both of my Senators voted to pass this legislation… one of whom, Mark Udall, actually tried to get an amendment into the bill to strip out the language about indefinite detention. It was voted down, in case you were unsure what Congress actually wanted from this bill. What boggles my mind is that even with his amendment shamefully voted down, in the end Senator Udall still voted for this Act. Did yours?

For what it’s worth, my Representative, Jared Polis, voted no. Did yours? Al Franken wrote an excellent essay on why he voted no as well.

I admit here I did something foolish. Because Senator Udall so clearly was against this horrifying provision, I thought he would vote against it. I also took President Obama at his word that he would veto the Act if those provisions weren’t stripped out. I should have written letters and made phone calls to both my Senators and the President, but instead I took no action, and now I’m worried it’s too late to stop this (though I urge everyone to write the White House and express their opinion).

However, I did send notes to my Senators. Here is the text, verbatim.

Senator-

I voted for you in the last election, hoping that you would add your voice against the growing fear-mongering and radical far-right movement that I think is plunging our country in the wrong direction.

However, put simply, your “Aye” vote on NDAA means I will not be voting for you in the next election cycle. The horrid provisions for indefinite detention and torture in this piece of legislature are what I might expect from the 1950s era Soviet Union, but not in our country, not today. This blatant codification of the violation of citizens’ rights by Senators and Representatives – men and women who swore to uphold the Constitution – is galling and disgusting.

You, sir, have lost my vote.

For Senator Udall, I added this before the last line: “I understand you tried to have an amendment placed into NDAA to reverse those provisions, and I appreciate that. But after it was voted down, leaving indefinite detention and torture in the Act, you still voted for it.”

I’m very angry about this. And you know what upsets me the most? I was worried about writing this post. I was concerned that in the United States of America, a nation of laws founded upon a Constitution guaranteeing my rights, that I might go on some sort of watch list somewhere.

And it is for that very reason I posted this article. I refuse to live in fear of my own government. We cannot fear them. But they must respect us, because our government is of the people, by the people, for the people. And we are the people.